This Memorandum contains ARTICLE 19’s analysis of the Draft Law on Freedom of Expression of Republic of Moldova (“Draft Law”);1 that was submitted by the Moldovan Government to the Parliament
This Memorandum analyses the Draft Law from the viewpoint of its compatibility with relevant international human rights standards. The Memorandum also examines the Draft Law in the light of international best practices in regard to freedom of expression laws. The Constitution of Moldova recognises the binding character of international human rights law and proclaims its supremacy over domestic law in Article 4. Therefore the Moldovan authorities are obliged to comply with the provisions of the International Covenant on Civil and Political Rights2 (“ICCPR”) and the European Convention on Human Rights3 (“European Convention”), against which the Draft Law is analysed.
ARTICLE 19 is an international, non-governmental human rights organisation which works with partner organisations around the world to protect and promote the right to freedom of expression. It has previously provided legal analyses in the area of media law to government and civil society organisations in over 30 countries.4 Regarding Moldova, ARTICLE 19 has analysed a number of the freedom of expression and freedom of information-related laws and
Draft Laws, including the 1999 and 2000 versions of the Draft Law on freedom of information, the 2003 version of Draft Law on freedom of press, the 2006 version of the Draft Law to promote participation and transparency in the decision making of public authorities, the audiovisual code, the 2008 version of draft state secrets law. ARTICLE 19 has also analysed the defamation provisions in the legislation of Moldova in its 2006 Memorandum concerning the amendments to decriminalise defamation and the 2008 Comment on the Moldovan President’s proposal on moral damages for defamation.5
The proposed Draft Law is praised for aiming at elaboration of the content of the right to freedom of expression as guaranteed by the Constitution and incorporation in national legislation of general international principles of freedom of expression. Although Moldova abolished criminal defamation in 2004, the domestic law and practice in the area of freedom of expression remain problematic.6 The introduction of the present Draft Law would therefore represent a significant step forward in the realisation of the right to freedom of expression in Moldova.
At the same time, ARTICLE 19 has serious concerns about the vagueness of some provisions of the Draft Law as international freedom of expression standards are not always correctly reflected in the legal principles of the Draft Law. In particular, the Draft Law fails to ensure that all restrictions on the right to freedom of expression fulfil the necessity requirement of the three-part test and that confiscation of the circulation or liquidation of media outlets are allowed only as a last resort in response to extremely serious violations of the law. The regulation of protection of confidential sources is not in full compliance with Council of Europe Recommendation R (2000)7. The defence of ‘reasonable publication’ cannot be invoked by all citizens. The regime of measures for ensuring legal action is confusing, and the proposed measures can be widely used. Finally, it allows interested persons to sue for defamation of deceased persons.
Section II of the Memorandum summarises the general international principles on freedom of expression and defamation that the analysis draws on, focusing on the jurisprudence of the European Court of Human Rights. The analysis additionally refers to several documents developed by ARTICLE 19 and endorsed by international bodies and other stakeholders. In particular, we refer to Defining Defamation: Principles on Freedom of Expression and Protection of Reputations (“Defining Defamation”)7 as an authoritative standard-setting document, drawing on comparative constitutional and international law jurisprudence. It contains principles which have attained significant international endorsement, including that of the three official mandates on freedom of expression, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression.8 In addition, ARTICLE 19 also relies on The Camden Principles on Freedom of Expression and Equality (the “Camden Principles”), a progressive interpretation of international law and standards concerning the balance between the rights to freedom of expression and equality prepared by ARTICLE 19 in consultation with high-level inter-governmental officials, civil society representatives and academic experts.9